In the Matter of the Petition by ) September 21, 1961 ) ZEST PUBLISHING COMPANY, INC. ) ) at ) P.O.D. Docket No. 1/234 ) Chicago, Illinois ) ) for a second-class mail permit for ) "ZING" magazine. ) APPEARANCES: Nathan T. Notkin, Esq. Chicago, Illinois for the Petitioner Saul J. Mindel, Esq. Eugene P. White, Esq. Office of the General Counsel Post Office Department for the Respondent Bosone, Reva Beck POST OFFICE DEPARTMENT Washington 25, D. C.
The Zest Publishing Company, Inc., the Petitioner in this case, is charged with having sent through the United States mail fifteen issues of a magazine called Zing in violation of 39 U.S.C. 4351, 4354 (as revised) and postal regulation 132.221, and in violation of 18 U.S.C. 1461.
The applicable portion of 39 U.S.C. Section 4354 reads:
"(a) Generally a mailable periodical publication is entitled to be entered and mailed as second-class mail if it--
(1) is regularly issued at stated intervals as frequently as four times a year and bears a date of issue and is numbered consecutively;
(2) is issued from a known office of publication;
(3) is formed of printed sheets;
(4) is originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or a special industry; ...."
The parts of 18 U.S.C. 1461 that apply read:
"Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made...."
"Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier."
"Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter."
Section 124.41 of the Postal Manual which is alleged as being violated in this case reads:
"Obscene, lewd, lascivious, or filthy publications or writings, or mail containing information concerning where, how, or from whom such may be obtained, and matter which is otherwise mailable but which has on its wrapper or envelope any indecent, lewd, lascivious, or obscene writing or printing. Any mail containing any filthy, vile, or indecent thing."
And Section 132.211 of the Postal Manual reads:
"Only newspapers and other periodical publications may be mailed at the second-class rates. The copies may not contain obscene, treasonable, lottery, or other kinds of material that would cause them to be nonmailable under the provisions of part 124."
In a letter from the Zest Publishing Company, Inc., marked Government's exhibit 2 and signed by the Company's President, Frank H. Adams, it is stated that the first publication known as Zing would be mailed beginning with the March, 1959, issue.
According to Mr. Adams there were two printer's errors in his dealings with his printer during the period between March, 1959 and July 1, 1960. The first one (Tr. 116) occurred when the printer failed to get the March issue of ZING out until the latter part of March. According to Mr. Adams (Tr. 116) the procedure in the publishing business is to have the periodical on the newsstands the latter part of the month preceding the cover date. He had to make an adjustment so he skipped the April issue.
The second printer's error (Tr. 120) was to print two August issues. The first one came out the latter part of July -- the second one labelled "August" came out the latter part of August so the September issue was skipped.
On January 4, 1960, Mr. Adams wrote a letter to the Postmaster of Chicago, Illinois - Government's exhibit 4 saying:
"We did not publish a December 1959 issue of Zing. Current subscribers, however, will receive an extra issue after their subscription expires so as not to miss an issue," and next to the last paragraph he went on to say,
"I might mention that one of the reasons I was unable to publish a December 1959 Zing was because of limited funds due to the fact that there is now a considerable amount of money tied up in the Post Office pending the issuance of said second-class permit."
In the hearing on May 3, 1960 (Tr. 124-128) Mr. Adams said there was no December, 1959, issue because his printer had a fire. It seems to me that when Mr. Adams wrote his letter of January 4, 1960 - Government's exhibit 4 - explaining why there would be no December issue he would have stated that his printer had had a damaging fire on October 4, 1959, and that because of it, the publication of the December, 1959, issue was impossible. But no, he said nothing about the fire until the hearing of May 3, 1960, months later. One cannot put credence in what seems to be shaky testimony of Mr. Adams regarding their not being an April, September and December issue of 1959.
There is nothing oblique and involved in the pertinent law. The Congress set out the requirements which qualify a publication for a second-class mailing permit. As some issues of Zing which the publisher indicated in the statement of frequency filed with the Post Office Department were not published there was no
periodical "regularly issued at stated intervals ... and numbered consecutively." Therefore it seems to me that there is a clear failure to meet one of the primary requisites for entitling a publication to a second-class mailing permit. For this reason, if for none other, the Petitioner's application must be denied.
Since the publication is deficient in the matter of the basic technical requirements of the statute - 39 U.S.C. 4354 - the character or quality of the contents of the publication becomes immaterial, for no second-class permit could be issued regardless of the nature of the publication's content. Without indicating agreement or disagreement with the findings and conclusions set forth in the Initial Decision in respect to the question of the mailability of Zing - 18 U.S.C. 1461 - the other findings of the Hearing Examiner are affirmed and the application filed by Zest Publishing Company for a second-class mail permit for Zing magazine is denied.